Opinion
No. 59414-1-I.
March 10, 2008.
The unpublished opinion in this cause was withdrawn by order of the Court of Appeals dated June 23, 2008. Substitute opinion filed. See 145 Wn. App. 1030.
In this case, we must decide if the State breached its stipulated bench trial agreement with appellant Bradley Barbeau. Barbeau was accused of molesting his young daughter, H.B. The State agreed to recommend a special sexual offender sentencing alternative (SSOSA) "[u]pon receipt of a sexual deviancy treatment evaluation and treatment plan each acceptable to the State. . . ." Clerk's Papers (CP) at 78. At sentencing, however, the State recommended against a SSOSA because after the agreement was formed, Barbeau lived with former victim M.B., now an adult, and went to a pumpkin farm with her and her children. Additionally, the sexual deviancy treatment evaluation indicated that he justified his offense behavior and was not highly motivated to be in treatment. We affirm because Barbeau did not satisfy the agreement's condition precedent that he obtain a sexual deviancy treatment evaluation and treatment plan acceptable to the State.
FACTS
Barbeau was charged with two counts of first degree child molestation. The counts arose out of allegations that he molested his seven-year-old daughter, H.B. Barbeau stipulated to identity, venue, and the admissibility of the probable cause affidavit and police reports at a bench trial. As part of the stipulation, he waived his right to a jury trial, to call and cross-examine witnesses, and to testify in his own defense. He also agreed that the evidence to be considered by the court was limited to the reports and the probable cause affidavit.
In return, the State agreed not to amend the existing charge to two counts of first degree rape of a child and to not charge one or more counts of communicating with a minor for immoral purposes. The State agreed to recommend a 78-month standard range sentence. Finally, the State agreed it would recommend a SSOSA "[u]pon receipt of a sexual deviancy treatment evaluation and treatment plan each acceptable to the State from a sexual deviancy therapist acceptable to the State . . ." CP at 78. The SSOSA recommendation was to call for all but 12 months of a 78-month standard range sentence to be suspended.
Barbeau sought and obtained a sexual deviancy treatment evaluation and treatment plan from Dr. Terry Copeland of Stevens Psychological Services. Two of the personality and psychological tests indicated that Barbeau was not amenable to treatment. The Minnesota Multiphasic Personality Inventory (MMPI) indicated that Barbeau was "reluctant to accept psychological causes for his problems. He is not likely to seek psychological treatment for his problems and would not be very open to behavioral change if treatment were suggested to him." CP at 232. The MMPI also reported that Barbeau "views his adjustments as adequate and probably does not feel the need for mental health treatment at this time." CP at 233. The Millon Clinical Multiaxial Inventory (MCMI) report stated that Barbeau "highly justifies his offense behavior and is not highly motivated to be in a treatment program to address his issues." CP at 234.
While recognizing that Barbeau showed little motivation to enter treatment, Dr. Copeland stated in his report, "Mr. Barbeau can be safely monitored in his community" because he committed incest, which "actually places him in a lower risk group for reoffense." CP at 236. Dr. Copeland concluded that he was "willing to work with him" but that "[t]he courts may require that he have a `second opinion' given regarding his risk to the community." CP at 236.
During the evaluation process, Barbeau disclosed that he had raped a relative, M.B., multiple times while he was aged 16 to 20 and M.B. was 8 to 12. After the evaluation but before sentencing, the assigned crime victim advocate informed Dr. Copeland, the community corrections officer, and Barbeau's attorney that Barbeau was living with M.B. and spending time with her and her minor children, one of whom was a girl nearly the same age as H.B. The crime victim advocate mentioned the pumpkin farm visit.
The presentence investigation (PSI) by the community corrections officer sought, among other things, to address these concerns. It confirmed that M.B. had recently moved into the same residence as Barbeau. M.B. admitted to the investigator that Barbeau had gone to the pumpkin farm with her and her children. The community corrections officer agreed with Dr. Copeland's assessment that Barbeau was "a reasonable risk for a community-based treatment program" and recommended imposition of a standard range sentence with the SSOSA alternative. CP at 221. But it is apparent from Barbeau's sentencing memorandum that his attorneys knew before the hearing that the prosecutor had decided to not recommend a SSOSA.
At the verdict and sentencing, the court first found Barbeau guilty based on the stipulation. Addressing sentencing, the prosecutor stated that she had anticipated this would be a "pretty standard SSOSA" and would be recommending accordingly. VRP (Dec. 5, 2006) at 4. She explained, however, that "it has been Mr. Barbeau's behavior since the entry of the stipulation that has made me unable to recommend a SSOSA at this time." Id. at 5. "The main cause of concern for me is that he has been living with [M.B.] . . . someone that he victimized when she was a child and when he was a young man." Id. at 5. She also cited their trip to the pumpkin farm as a factor in her decision to not recommend a SSOSA.
The prosecutor also explained that she was not recommending a SSOSA because of some "rather questionable things" in Barbeau's evaluation. Id. at 6. Specifically, the evaluation indicated that he "highly justifies his offense behavior and is not highly motivated to be in a treatment program to address the issue." Id. at 6. She concluded that a SSOSA was not beneficial to Barbeau because he is not amenable to treatment. She also concluded that a SSOSA was not beneficial to the community because he had "proven himself to be a danger to the community by seeking out a prior victim and not showing anymore concern than to expose himself to both his prior victim and her children." Id. at 7-8. Defense counsel asserted that there had been no court order prohibiting Barbeau from attending places where children congregate. He explained that Barbeau's minimizing and denial was not uncommon in an untreated sex offender.
The court imposed a standard-range sentence and denied a SSOSA because it was "not persuaded that the defendant is a good candidate for a SSOSA." Id. at 38. This appeal followed.
ANALYSIS
Both parties agree that the stipulation in this case is an enforceable contract between the prosecutor and Barbeau, and as such, it is analyzed under basic contract principles. State v. McInally, 125 Wn. App. 854, 867, 106 P.3d 794 (2005). These principles include the implied duty of good faith and fair dealing inherent in every contract and extend to both parties. McInally, 125 Wn. App. at 867. "Due process requires a prosecutor to adhere to the terms of the agreement." State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997). The State fulfills its obligations if it acts in good faith and does not contravene a defendant's reasonable expectations that arise from the agreement. State v. McRae, 96 Wn. App. 298, 305, 979 P.2d 911 (1999). Failure to comply with a condition precedent excuses performance under a contract. McInally, 125 Wn. App. at 867-68.
The stipulation in this case required Barbeau to give up several of his constitutional rights in exchange for, among other things, the prosecutor's promise to recommend a SSOSA "[u]pon receipt of a sexual deviancy treatment evaluation and treatment plan each acceptable to the State from a sexual deviancy therapist acceptable to the State . . ." CP at 78. A SSOSA suspends a first time sex offender's sentence and places the offender in a community sexual deviancy program for up to five years. RCW 9.94A.670(4), (5); McInally, 125 Wn. App. at 862. Two important factors in deciding if a SOSSA is appropriate are "whether the offender is amenable to treatment" and "the risk the offender would present to the community, to the victim, or to persons of similar age and circumstances as the victim. . . ." RCW 9.94A.670(4).
The State did not breach and was not required to recommend a SSOSA because Barbeau did not satisfy the condition precedent that he obtain "a sexual deviancy treatment evaluation and treatment plan each acceptable to the State. . . ." CP at 78. The prosecutor reasonably concluded that Barbeau's evaluation and treatment plan were not acceptable to the State. First, the MMPI and MCMI indicated that Barbeau justified his behavior and was not amenable to treatment. The problems in the evaluation alone are sufficient to justify the prosecutor's refusal to recommend a SSOSA. See State v. Koivu, 68 Wn. App. 869, 872, 847 P.2d 13 (1993) (because condition precedent of "amenability to treatment" was not met, prosecutor was not bound by plea agreement to recommend a SSOSA).
Barbeau argues that the State accepted Dr. Copeland's evaluation and is now engaging in a "post hoc rationalization" that the evaluation was unacceptable. Reply Br. of Appellant at 4. But at the sentencing hearing, the prosecutor clearly listed the defects in the evaluation as one of the reasons she was not recommending a SSOSA. For example, she told the court, "Then I received the evaluation and found some rather questionable things in that. . . . There are certain things in the evaluation itself . . . that make me think that he is not actually a qualified candidate and not amenable to treatment." VRP (Dec. 5, 2006) at 6-7.
The State also did not breach the agreement because Barbeau's behavior after entering into the agreement caused the prosecutor to be reasonably concerned about the risk Barbeau presented to the community and persons of similar age and circumstances as the victim. He was living with a former victim, M.B., and spending time with her and her children, who were around the same age as the victim in this case. Additionally, he visited a pumpkin farm with M.B. and her children shortly before Halloween — a time when other children were likely to be present.
Barbeau argues that he did not breach the agreement because he did not violate his conditions of release by living with a former victim and spending time with her children. The relevant condition of release provides, "The defendant shall not reside at all with children under the age of 18; and the defendant shall have no contact, direct or indirect, with children under the age of 18, except with the supervision of a responsible adult who is aware of these charges." CP at 97. Even assuming that Barbeau was not in violation of this condition of release, the prosecutor was free to consider his postagreement behavior in deciding whether the sexual deviancy treatment evaluation was acceptable to the State. At the sentencing hearing, the prosecutor linked her concern about Barbeau's behavior to one of the purposes of the SSOSA evaluation — to assess Barbeau's risk to the community. The prosecutor felt that Barbeau's conduct presented an unacceptable level of risk to the community, despite the contrary conclusion in the evaluation. She acted in good faith in making this determination.
Finally, Barbeau submitted a statement of additional grounds for review. The only ground that is not duplicative of the grounds covered in his appellant briefs is his argument that he was not "given adequate time to respond to the new evidence brought into trial, on the day of the bench trial." Statement of Additional Grounds for Review at 3. This contention is without merit because the assigned crime victim advocate's letter outlining concerns about Barbeau's postagreement behavior was sent to his attorney nearly a month before the sentencing hearing.
For the foregoing reasons, we affirm.